JUSTICE IN JEOPARDY
Budget Cuts Put State Public Defense Systems Under Stress

by Jennifer Burnett

An $11 million shortfall in North Carolina’s Office of Indigent Defense budget could have a ripple effect throughout the state’s criminal justice system.

Public defenders handle about 32 percent of indigent cases, and the Office of Indigent Defense Services contracts with private attorneys to handle the rest. But the 2011 fiscal year shortfall puts that legal service in jeopardy. Assistant Director Danielle Carmen said the shortfall will force the office to stop or delay paying appointed private attorneys by mid-May 2011. That could be bad news for indigent defendants, according to Carmen.

“You get what you pay for in this world—there is a corresponding impact on quality when you don’t pay people a fair wage,” she said.

Because the state is required to provide that legal defense for people who can’t afford it, North Carolina could be open to legal liability if the program is underfunded.

“Indigent defense is not an optional expense for state governments,” said Mary Schmid, senior counsel for the Criminal Justice Program at The Constitution Project. “While other state budget expenditures may be completely discretionary, funding for indigent defense is simply not.”

That’s because in 1963, the U.S. Supreme Court in Gideon v. Wainwright ruled that defendants charged with crimes that carry a prison sentence are guaranteed a right to counsel, even if they cannot afford to hire an attorney.

In the face of an economic recession and budget constraints, providing enough public defenders is getting harder for states. As states struggle to fund mandatory programs like education, unemployment insurance and Medicaid, budgeting for the criminal justice system can be a particularly thorny issue. That’s because underfunding could lead to legal battles over the constitutionality of budget cuts to things like the public defender system.

That’s what happened in Montana. After the American Civil Liberties Union sued the state for not providing adequate public defense for impoverished people, the state legislature in 2005 established the public defender system.

“Our agency is committed to meet our mission to provide quality legal services for those that qualify even in the face of fiscal constraints,” said Harry Freebourn, administrative director for Montana’s public defender system.

Those fiscal constraints—an $800,000 shortfall in this budget cycle—are compounded by a 4 to 7 percent increase in the caseload for the state’s public defenders over the last two years.

Demand Up, Funding Down

Like many state programs, the public defender systems are suffering. In an economic downturn, more defendants qualify for services, while cash-strapped programs struggle to keep up with demand and still provide quality legal services.

These programs were facing serious funding difficulties even before the current economic crisis. In a 2009 meeting of the American Bar Association House of Delegates, Attorney General Eric Holder addressed the growing problem of underfunded indigent defense systems.

“Resources for public defender programs lag far behind other justice system programs,” he said. “Defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients.”

While the right to indigent defense is well-established, the structure and level of ongoing support of those systems varies significantly among states. Some states are entirely responsible for funding and oversight of indigent defense programs, while in other states, these responsibilities primarily fall on the county or are shared by local and state government.

Because public defense programs are almost exclusively funded by state or local coffers, those programs are particularly vulnerable to changes in fiscal conditions. In Oklahoma, for instance, state budget shortfalls have led to staffing cuts in the state’s indigent defense program.

“Our problem is, compared to other agencies, we really don’t have any other funding source besides the state legislature,” Joe Robertson, the Oklahoma Indigent Defense System’s executive director, told the Norman Transcript.

In addition to differences in funding structure, the administration of indigent defense programs differs from state to state. According to a recent report published by the American Bar Association, 27 states substantially or completely organize their defense programs on a statewide level; 19 of those states have a state commission that supervises the state’s programs, while in the remaining eight states a state public defender, rather than a commission, provides oversight. The other 23 states have either a state commission with partial authority over indigent defense, a state appellate commission or agency, or no state commission at all.

Depending on the state administrative structure, public defense clients may be represented by attorneys working for state- or county-run public defender offices or by private counsel appointed by the court or a public defense panel, like in North Carolina.

States Could Face Legal Challenges

When it comes to criminal defense, quality and access become very significant matters, protected by state and federal constitutions.

“We’re a constitutional function of government,” Robertson told the Norman Transcript of the Oklahoma Indigent Defense System. “State and federal government requires that indigent defendants be furnished the effective assistance of counsel at the government’s expense.”

States that fail to adequately fund or administer their public defense systems could face problems. More than two dozen states have faced legal challenges to their programs in recent years.

“When state legislatures refuse to provide adequate funding to indigent defense systems, as they are constitutionally obligated to do, states face the real possibility of litigation against the state, as we’re seeing now in states like Michigan, New York and Florida,” Schmid said.

So as caseloads increase and resources dwindle, public defenders may find themselves backed into a corner.

“Defense attorneys who are forced to take on more clients than they can competently represent simply may have no other option than to file a lawsuit to obtain the funding necessary to protect the constitutional rights of the accused,” Schmid said.

5 Innovative Ways to Use Federal Funding

The U.S. Department of Justice allows states to use a portion of their Byrne Justice Assistance Grants, or JAG, funding for indigent defense, which has been designated as a key priority area.

“Many states have consistently used (JAG funds) exclusively for police and prosecutor activities, exacerbating the already existing gap between law enforcement and indigent defense spending,” Mary Schmid, senior counsel for the Criminal Justice Program at The Constitution Project, said.

“States should take advantage of this funding stream to assist them in meeting their obligations.”
Here are some innovative ways states use that money for public defender programs, according to a recent survey by the National Criminal Justice Association.

1. Minnesota is using the funds to offset decreases in state funding that cut 53 public defender positions.

2. Colorado is using the funds to support a pilot project demonstrating new practices for bail administration and pretrial services.

3. Delaware is using the money to fund vacancies in the public defender’s office for case processing needs.

4. Kentucky is using the federal dollars to fund social workers who will work with clients to identify needed services and sentencing options using evidence-based practices.

5. New York is using the funds to enhance defense services leading to expedited flow of drug and violent offenders through the system, and ultimately improving case outcomes.